The Burger Court Opinion Writing Databasesupremecourtopinions.wustl.edu/files/opinion_pdfs/1977/...eguvrtute (Ctatri of tilt 'guitar ,tztito aBilingto-n, 79. Q. 2.L1A4g CHAMBERS OF

The Burger Court OpinionWriting Database

Adamo Wrecking Co. v. United States434 U.S. 275 (1978)

Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington University in St. LouisForrest Maltzman, George Washington University

REPRODU 4 FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; IIRRARVOrCOMpRES

Aaprtutt Qjonrt of tI't Pita 55tatts?Washington, p. (4. zoptg

CHAMBERS OF

THE CHIEF JUSTICE

October 31, 1977

Dear Bill:

Re: 76-911 Adamo Wrecking Co, v, United States

I like the number one alternative. The case

may well fade out on a remand.

Regards,

Mr, Justice Rehnquist

cc: Mr. Justice WhiteMr. Justice MarshallMr. Justice Powell

FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION,''LIBRARY-OrCON_,

Au:prents (loud of fill Ittnitet ,finatte

7aeltittotait, P. CS. 20Pkg

CHAMBERS OF

THE CHIEF JUSTICE

December 22, 1977

Dear Bill:

Re: 76-911 Adamo Wrecking v. U.S.

As one of the final acts of calendar 1977, I jo.ien-

a,stjw...a./Regards, 4f...1

Mr. Justice Rehnquist

cc: The Conference

FROM THE COLLECTIONS OF THE MANUSCRIPT DInSIOn ITBRART-Or'CON

it.irrtnnt (Coati of tilt Pnifrb 5tzttro

raollingtott, In. Q. 2op4g

CHAMBERS OF

JUSTICE WM.J. BRENNAN, JR.

October 17, 1977

RE: No. 76-911 Adamo Wrecking Co. v. United States

Dear John:

The vote in the above is 5 to 4 with Potter, Harry,

you and I to Affirm. Would you be interested in taking

on the dissent after Bill Rehnquist circulates for the

Court?

Sincerely,

/ ^(--

Mr. Justice Stevens

cc: Mr. Justice StewartMr. Justice Blackmun

REPRODU Al FROM THE COLLECTIONS OF THE EANUSGRIPT'DIVISION;'ITERRRY"OF'CW1:;:

,Surrintte (gond of tilt /act, ,fttitoPaoltittotan, (4. 2.a1*g

CHAMBERS OF

JUSTICE WM.J. BRENNAN, JR.

December 9, 1977

RE: No. 76-911 Adamo Wrecking Co. v. United States

Dear Potter:

Please join me in the dissent you have prepared

in the above.

Sincerely,

Mr. Justice Stewart

cc: The Conference

REFRODWED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIM7LIBRARY"OF-CON

No. 76-911, ADAMO WRECKING CO. v. UNITED STATES

MR. JUSTICE STEWART, dissenting.

Section 307(b)(1) of the Clean Air Act provides that.

a "petition for review of action of the Administrator in

promulgating . . . any emission standard under section

112" may be filed only in the United States Court of

Appeals for the District of Columbia within 30 days of

promulgation. Section 307(b) (2) of the Act provides that

an "[a]ction of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal

proceedings for enforcement." Despite these unambiguous

provisions, the Court holds in this case that such an

action of the Administrator shall be subject to judicial

review in a criminal proceeding for enforcement of the

Act, at least sometimes. Because this tampering with theTo: The Chief Justice

Justice BrennanMr. Justice White

3Mr. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice RehnquistMr. Justice Stevens

From: Mr. Justice Stewart

Circulated: DEC i1977._

Prom. Mr. Justice Stewart.

Po:;jr('d1,3.t-tat DRAFT

REPRODU AO FROM THE COLLECTIONS OF THE HANUSCRIPT'DIVISION;IIBRARY-OF-CONel:'us ceBrennan

Justice WhiteJustice MarshallJustice BlackmunJustice PowellJustice RohnquistJustice Stevens

SUPREME COURT OF THE UNITED STATES

No. 76-911

Adamo Wrecking Co.,-,Petitioner On Writ of Certiorari to the United

States Court of Appeals for the Sixth

United States.Circuit.

[January —, 1978]

MR. JUSTICE STEWART, dissenting.Section 307 (b) (1) of the Clean Air Act provides that a

"petition for review of action of the Administrator in promul-gating . . . any emission standard under section 112" may befiled only in the United States Court of Appeals for the Districtof Columbia within 30 days of promulgation. Section 307 (b)(2) of the Act provides that an "[a]ction of the Administratorwith respect to which review could have been obtained underparagraph (1) shall not be subject to judicial review in civil orcriminal proceedings for enforcement." Despite these unam-biguous provisions, the Court holds in this' case that such anaction of the Administrator shall be subject to judicial reviewin a criminal proceeding for enforcement of the Act, at leastsometimes. Because this tampering with the plain statutory'language threatens to destroy the effectiveness of the unifiedand expedited judicial review procedure established by Con-gress in the Clean Air Act, I respectfully dissent.

The inquiry that the Court today allows a trial court tomake—whether the asbestos regulation at issue is an emissionstandard of the type envisioned by Congress—is nothing morethan an inquiry into whether the Administrator has actedbeyond his statutory authority. But such an inquiry is anormal part of judicial review of agency action. 5 U. S. C.§ 706 (2)(C) ; see Citizens to Preserve Overton Park v. Volpe,401 U. S. 402, 415, And it is precisely such "judicial review"

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIOn OF'CONGHESSCORMS

normal part of judicial review of agency action. 5 U. S. C.

filed only in the United States Court of Appeals for the District

Adamo Wrecking Co.,

of Columbia within 30 days of promulgation. Section 307 (b)

and MR. JUSTICE BLACKMUN join, dissenting.

gating . . . any emission standard under section 112" may be"petition for review of action of the Administrator in promul-

with respect to which review could have been obtained under

criminal proceedings for enforcement." Despite these unam-

than an inquiry into whether the Administrator has acted

paragraph (1) shall not be subject to judicial review, in civil or

biguous provisions, the Court holds in this case that such anaction of the Administrator shall be subject to judicial review

gress in the Clean Air Act, I respectfully dissent.

make—whether the asbestos regulation at issue is an emission

401 U. S. 402, 415. And it is precisely such "judicial review"

in a criminal proceeding for enforcement of the Act,, at leastsometimes. Because this tampering with the plainlanguage threatens to destroy the effectiveness of the unifiedand expedited judicial review procedure established by Con-

standard of the type envisioned by Congress—is nothing more

beyond his statutory authority. But such an inquiry is a

1 706 (2) (C) ; see Citizens to Preserve Overton Park v. Volpe,

(2) of the Act provides that an "[a]ction of the Administratorrev

SUPREME COURT OF THE UNITED

Section 307 (b) (1) of the Clean Air Act provides that a

MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN

The inquiry that the Court today allows a trial court to

United States.

Petitioner,v.

[January —, 1978]

On Writ of Certiorari to the United

2nd DRAFT

No. 76-911

Circuit.States Court of Appeals for the Sixth

Mr. Justice cte‘,..-

REPRODU FROM THE COLLECTIONS OF THE NANIISCRIPTDIVISIOW;r1HEAETWCOMW§,_ - - ■__

J.§mprtzne lajourt of tilt gnittb ,tatto

Paoirin 2L1gton, p. (4. 21x.p

October 31, 1977

Re: No. 76-911 - Adamo Wrecking Co. v. U. S.

Dear Bill:

I would prefer to remand for the "emission

standard" determination but could go along with

the other alternative.

Sincerely,


Copies to to The Chief JusticeMr. Justice MarshallMr. Justice Powell

CHAMBERS OF

N R. EJUSTICE BYRO WHIT

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT LIBRARY"OF'CONGBESSx ,

Auirreutt qourt of tiOtinitett 2.tattoAittelringtan, (c.

CHAMBERS OF

JUSTICE BYRON R. WHITE

November 8, 1977


Dear Bill:

Please join me.

Sincerely,


Copies to Conference

Ottprtute (Court of tftelattittb Atatteinasitingtolt, 3o. (q. 2Dg4g

CHAMBERS OF

JUSTICE THU RGOCID MARS HALL November 1, 1977

Re: No. 76-911, Adamo Wrecking Co. v. United States

Dear Bill:

I would prefer to decide the "emission standard"

here without remand.

Sincerely,


cc: The Chief JusticeMr. Justice WhiteMr. Justice Powell

REPRODIT FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION IMBRARY-OF 'COMES

(court of tlit Patti tett*

Vasitingtoit, 2ng41

CHAMBERS OF

JUSTICE THURGOOD MARS HALL November 28, 1977

Re: No. 76-911, Adamo Wrecking Co. v. 'United States

Dear Bill:

Please join me.

Sincerely,

T. M.


cc: The Conference

REPRODU FROH THE COLLECTIONS OF THE 2IANIISCRIPT DIVISION ISERARY-OrCONCEESSI

eguvrtute (Ctatri of tilt 'guitar ,tztitoaBilingto-n, 79. Q. 2.L1A4g

CHAMBERS OF

JUSTICE HARRY A. BLACKMUN

November 7, 1977


Dear Bill:

I shall await the dissent in this case.

Sincerely,

/laMr. Justice Rehnquist

cc: The Conference

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIONi-LIBRARY OF "CONGRESSA

.,%prtutc Crmut of tit, Tinittit ,ftttelyrtwiringtort, p. (c. 2.opkg

CHAMBERS OF

JUSTICE HARRY A. BLACKMUN

Roche ster, MinnesotaDecember 13, 1977

Re: No. 76-911 - Adamo Wrecking Co. v. U.S.

Dear Potter:

Please join me in your dissenting opinion.

Sincerely,

H. A. B.

Mr. Justice Stewart

cc: The Conference

4;1 MANUSCRIPT DIVISION',"

CHAMBERS OF

JUSTICE LEWIS F POWELL, JR.

Dear Bill:

grate (Puri of tilt 21initer .ties

lt as 4+110 cm 113. (4. 211 *g

October 31, 1977

No. 76-911 Adamo Wrecking Co. v. U.S.

You inquire whether we should remand this case forreview by the CA of the DC's conclusion that this regulationis not an "emission standard", or decide the questionourselves.

I am prepared to join an opinion deciding thequestion ourselves. The recent amendment to §112 expresslydraws a distinction between emission standards and "adesign, equipment, work practice, or operational standard. .• • " While this subsequent enactment by the Congress is notcontrolling, it fortifies what I think is the most rationalinterpretation of the term "emission standard" in theoriginal statute.

Although I have a preference for disposing of thecase here, I am content - if others have a contrarypreference - to join an opinion that would remand the casewith this determination to be made below.

My notes indicate that John Stevens' first vote wasto affirm but that he could remand for a determination ofwhether the regulation in question is an "emissionstandard". My notes quote John as saying that thepetitioner "is entitled to have a court decide whether thisis an emission standard".

The possibility of John making a sixth vote -assuming my notes correctly reflect his position - isperhaps a reason supporting your first alternative.

Sincerely,


lfp/sscc: The Chief Justice

Mr. Justice WhiteMr. Jutice Marshall

November 16, 1977

No. 76-911 Adamo Wrecking_Co. v. U.S

Dear Bill:

I am still with you, but do have some suggestions.

My primary one is that your draft does not seem toaddress forthrightly the government's principal argumentthat petitioner could and should have challenged theregulation in the DC Circuit under S307(b)(1) on the groundthat it was not an "emission standard". The government thenargued that petitioner, having failed to make this challengewithin the 30-day period, was precluded by 5307(b)(2) fromthereafter making it. I would prefer to meet this argumenthead on. I think it is immaterial whether this challengecould have been made earlier. In the context of a criminalprosecution, a defendant should be able to assert as adefense that the crime with which he is charged was not onecreated by the statute.

The first full paragraph on page 3 troubles me.The petitioner in this case makes no constitutionalchallenge to the preclusion statute here. It does rely onlanguage in Yakus for its argument that Chief JusticeStone's opinion explicitly refrained from holding that thepreclusion provision would bar a defense that the regulationwas invalid on its face. But, as your draft points out inthe 6th line of the full paragraph on page 3, "we do notthink that [Yakus] decides this one." I therefore see noreason to volunteer that we "adhere" to the holding in Yakus.

I think Yakus was influenced so significantly bythe War Powers provisions, that it would not necessarily bea binding precedent in a case involving a constitutionalattack on a statute that was so preclusory as arguably todeny due process. In short, why reaffirm Yakus when it isquite unnecessary?

-2-

In any event, if you think it necessary tocharacterize Yakus, I would suggest some modification of thefirst sentence on page 3. I would at least make clear thatany congressional attempt to foreclose challenges to acriminal statute is subject to the due process clause. Inmy view, a 30-day statute of limitations, precludingdefenses in a criminal prosecution should be viewed as adenial of due process. I think Thurgood shares thisview in his concern for the "ma and pa" constractors - ofwhom there are thousands. Few of those have access to orhave even heard of the Federal Register, much less read itregularly.

Sincerely,


lfp/ss

1st DRAFT

From: Mr. Justice Powell

Circulated: . WV 2 9 Mr

SUPREME COURT OF THE UNITED STAMat'

No. 76-911

Adamo Wrecking Co.,On Writ of Certiorari to the UnitedPetitioner ,

States Court of Appeals for the Sixthv.Circuit.

United States.

[November —, 1977]

MR. JUSTICE POWELL concurring.If the constitutional validity of § 307 (b) of the Clean Air

Act had been raised by petitioner, I think it would havemerited serious consideration. This section limits judicialreview to the filing of a petition in the United States Courtof Appeals for the District of Columbia within 30 days fromthe date of the promulgation by the Administrator of anemission standard. No notice is afforded a party who may besubject to criminal prosecution other than publication of theAdministrator's action in the Federal Register.' The Act inthis respect is similar to the preclusion provisions of theEmergency Price Control Act before the Court in Yakus v.United States, 321 U. S. 414 (1944), and petitioner may havethought the decision in that case effectively foreclosed a dueprocess challenge in the present case.

Although I express no considered judgme , I think Yakusis at least arguably distinguishable. The sta e camebefore the Court during World War II, and it can be viewed as

1 Section 112 (b) (B) of the Act requires the Administrator to publishproposed emission standards and to hold a public hearing before standardsare promulgated. But there is no more assurance that notice of proposedstandards will come to the attention of the thousands of persons andentities affected than that notice of their actual promulgation will. Neitheris it realistic to assume that more than a fraction of these persons andentities could afford to follow or participate in the Administrator'shearing.

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION', LIBRARY-OF"CONGRESS

To: The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice 14arshallMr. Justice Blarl'munMr. Justice P,-,!,n.cjlistMr. Justice Stevens

REPRODU ED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION;-1.1ERARY-OF

The Chief JusticeMr. Justice WhiteMr. Justice MarshallMr. Justice Powell

$ttprtur2 grourt of the Aniter ,Otatto

Pagiringtan, P. 14- 2-0g43

CHAMBERS OF

JUSTICE WILLIAM H. REHNQUIST

October 31, 1977

Re: No. 76-911 - Adamo Wrecking Co. v. United States

Dear Chief, Byron, Thurgood, and Lewis:

I am now far enough along in the process of drafting thisopinion so that, having determined that the contention that aparticular regulation is not an "emission standard" may beraised as a defense to a criminal prosecution under the CleanAir Act, we must also decide whether to remand the case tothe Sixth Circuit for review of the District Court's conclusionthat this regulation is not an "emission standard", or insteadto decide the question here ourselves. If we choose the formeralternative, it requires saying less about it right now andhaving the benefit of at least one Court of Appeals opinion ifwe must consider the question at a later date. The latteralternative has the merit of finally deciding here an essentialelement of the government's case. My Conference notes indicatethat none of the five of us addressed this question, though ofcourse they could be wrong; I will be glad to go along withwhatever a majority of you prefer on this point. Will you letme know?

REPRODU MONTHS COLLECTIONS OF THE NANIISCRIPT-DIVISION; 11)3RAILT"OFI'CON

To: The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr. Justice PclaunMr. Justice P-)willMr. Justice Stev---

From: Mr. Justice

1st DRAFT Circulated: 1Sr

SUPREME COURT OF THE UNITED STATER3ulated:

No. 76-911

Adamo Wrecking Co.,, On Writ of Certiorari to the UnitedPetitioner,

States Court of Appeals for the Sixthv.United States.

Circuit.


MR. JUSTICE REHNQUIST delivered the opinion of the Court.The Clean Air Act of 1970 authorizes the Administrator

of the Environmental Protection Agency to promulgate"emission standards" for hazardous air pollutants, "at thelevel which in his judgment provides an ample margin ofsafety to protect the public health." § 112 (b) (1) (B), 42U. S. C. § 1857 c-7 (b)(1)(B). The emission of an air pol-lutant in violation of an applicable emission standard is pro-hibited by § 112 (c) (1) (B) of the Act, 42 U. S. C. § 1857c-7 (1)(B). The knowing violation of..the latter section, inturn, subjects the violator to fine and imprisonment underthe provisions of § 113 (c) (1) (C) of the Act, 42 U. S. C.§ 1857 c-8 (c) (1) (C). The final piece in this statutory puz-zle is § 307 (b) of the Act, which provides in pertinent part:

"(1) A petition for review of action of the Administra-tor in promulgating . . . any emission standard undersection 112, . . . may be filed only in the United StatesCourt of Appeals for the District of Columbia. . . .Any such petition shall be filed within 30 days from thedate of such promulgation or approval, or after suchdate if such petition is based solely on grounds arisingafter such 30th day.

FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIOn'IIHRARY-01"CON

To: The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Stevens

From: Mr. Justice Rehnquist

Circulated:

Recirculated: 677end DRAFT


No. 76-911

Adamo Wrecking Co.,, 01) Writ of Certiorari to the UnitedPetitioner,

States Court of Appeals for the SixthV.

United States. Circuit.


MR. JUSTICE REHNQUIST delivered the opinion of the Court,The Clean Air Act of 1970 authorizes the Administrator

of the Environmental Protection Agency to promulgate"emission standards" for hazardous air pollutants, "at thelevel which in his judgment provides an ample margin ofsafety to protect the public . health." § 112 (b) (1) (B), 42U. S. C. § 1857 c-7 (b) (1) (B). The emission of an air pol-lutant in violation of an applicable emission standard is pro-hibited by § 112 (c)(1)(B) of the Act, 42 U. S. C. § 1857c-7 (c) (1) (B). The knowing violation of the latter section, inturn, subjects the violator to fine and imprisonment underthe provisions of § 113 (c)(1)(C) of the Act, 42 U. S. C.§ 1857 c-8 (c) (1) (C). The final piece in this statutory puz-gle is § 307 (b) of the Act, which provides in pertinent part:

"(1) A petition for review of action of the Administra-tor in promulgating . . . any emission standard undersection 112, . . . may be filed only in the United StatesCourt of Appeals for the District of Columbia. . . .Any such petition shall be filed within 30 days from thedate of such promulgation or approval, or after suchdate if such petition is based 'olely on grounds arisingafter such 30th clay.

ti-43rtute (qourt of tilt Atitee Abacoltrztokinotoit, . Q. zoptg

CHAMBERS OF

JUSTICE WILLIAM H. REHNQUIST

November 16, 1977

Re: No. 76-911 Adamo Wrecking Co. v. United States

Dear Lewis:

I think I can accomodate the suggestions contained inyour letter of November 16. I would propose the followingchanges in the first full paragraph on page 3 of the presentcirculating second draft:

(1) For the second sentence in that paragraphsubstitute: "That case, however, does notdecide this one."

(2)Add at the end of that paragraph thefollowing sentence: "For the reasons here-after stated, we hold that one such asrespondent who is charged with a criminalviolation under the Act may defend on theground that the 'emission standard' which heis charged with having violated was not an'emission standard' within the contemplationof Congress when it employed that term, eventhough the 'emission standard' in questionhas not been previously reviewed under theprovisions of § 307(b) of the Act."

Because Byron has already joined the present draft, I amsending him a copy of these proposed changes.

Mr. Justice Powell

Copy to Mr. Justice White

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; rIBRARY-OFTON

JTo: The Chief Justice

Mr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Stevens

3rd DRAFT

From: Mr. Justice Rehnqui-1-

Circulated:

Recirculated: ilLry 18/,


No. 76-911

Adamo Wrecking Co.,On Writ of Certiorari to the UnitedPetitioner,



MR. JUSTICE REHNQUIST delivered the opinion of the Court.The Clean Air Act of 1970 authorizes the Administrator

of the Environmental Protection Agency to promulgate"emission standards" for hazardous air pollutants, "at thelevel which in his judgment provides an ample margin ofsafety to protect the public health." § 112 (b) (1) (B), 42U. S. C.: § 1857 e-7 (b) (1) (B). The emission of an air pol-lutant in violation of an applicable emission standard is pro-hibited by § 112 (c) (1) (B) of the Act, 42 U. S. C. § 1857c-7 (c) (1) (B). The knowing violation of the latter section, inturn, subjects the violator to fine and imprisonment underthe provisions of § 113 (c) (1) (C) of the Act, 42 U. S. C.§ 1857 c-8 (c)(1)(C). The final piece in this statutory puz-zle is § 307 (b) of the Act, which provides in pertinent part:

"(1) A petition for review of action of the Administra-tor in promulgating . . . any emission standard undersection 112, . . . may be filed only in the United StatesCourt of Appeals for the District of Columbia. . . .Any such petition shall be filed within 30 days from thedate of such promulgation or approval, or after suchdate if such petition is based solely on grounds arising:

. after such 30th day.

United States.

REPRODU 41 FROM THE COLLECTIONS OF THE MANUSCRIPT•DIVISION,'IMARART-10E"CON

To: The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice White

Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Stevens


Circulated:

4th DRAFT DEC b 1977 Recirculated:

SUPREME COURT OF WE UNITED-STATtS

No. 76-911

Adamo Wrecking Co.,On Writ of Certiorari to the UnitedPetitioner,

States Court of Appeals for the SixthV.

United States.Circuit.Ci


MR. JUSTICE REHNQUIST delivered the opinion of the Court,The Clean Air Act of 1970 authorizes the Administrator

of the Environmental Protection Agency to promulgate"emission standards" for hazardous air pollutants, "at thelevel which in his judgment provides an ample margin ofsafety to protect the public health." § 112 (b) (1),(B), 42U. S. C. § 1857 c-7 (b) (1) (B). The emission of ant air pol-lutant in violation of an applicable emission standard is pro-hibited by § 112 (c) (1) (B) of the Act, 42 U. S. C. § 1857e-7 (c) (1) (B). The knowing violation of the latter section, inturn, subjects the violator to fine and imprisonment underthe provisions of § 113 (c) (1) (C) of the Act, 42 U. S. C.§ 1857 c-8 (c) (1) (C). The final piece in this statutory puz-zle is § 307 (b) of the Act, which provides in pertinent part:

"(1) A petition for review of action of the Administra-tor in promulgating . . . any emission standard undersection 112, . . . may be filed only in the United StatesCourt of Appeals for the District of Columbia. . . Any such petition shall be filed within 30 days from thedate of such promulgation or approval, or after suchdate if such petition is based solely on grounds arising:after such 30th day..

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION'i'LIERARY'VF-CONQRES

To: The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr, Justice BlakmunMr. Justice PowellMr. Justice Stevens


5th DRAFT Circulated•

SUPREME COURT OF THE UNITED grieng§ulated: DEC 1977

No. 76-911

Adamo Wrecking Co.,Petitioner On Writ of Certiorari to the United,

States Court of Appeals for the Sixthv. Circuit.United States.


MR. JUSTICE REHNQUIST delivered the opinion of the Conn:The Clean Air Act of 1970 authorizes the Administrator

of the Environmental Protection Agency to promulgate"emission standards" for hazardous air pollutants, "at thelevel which in his judgment provides an ample margin ofsafety to protect the public health." § 112 (b) (1) (B), 42U. S. C. § 1857 c-7 (b) (1) (B). The emission of an air pol-lutant in violation of an applicable emission standard is pro-hibited by § 112 (c) (1) (B) of the Act, 42 U. S. C. § 1857c-7 (c) (1) (B). The knowing violation of the latter section, inturn, subjects the violator to fine and imprisonment underthe provisions of § 113 (c) (1) (C) of the Act, 42 U. S. C.§ 1857 c-8 (c) (1) (C). The final piece in this statutory puz-zle is § 307 (b) of the Act, which provides in pertinent part:

"(1) A petition for review of action of the Administra-tor in promulgating . . . any emission standard undersection 112, . . . may be filed only in the United StatesCourt of Appeals for the District of Columbia. . . .Any such petition shall be filed within 30 days from thedate of such promulgation or approval, or after suchdate if such petition is based solely on grounds arisingafter such 30th day.

.ktp-r.entt Qprart of tittlinittir $Intro

aoltington, p• (c. 2U

'CHAMBERS OF

JU STICE JOHN PAUL STEVENS

October 17, 1977

Re: 76-911 - Adamo Wrecking Co. . United States

Dear Bill:

Thanks for inviting me to take on the dissent.I will be happy to do so.

Respectfully,

Mr. Justice Brennan

cc: Mr. Justice StewartMr, Justice Blackmun

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIERARY-OF'CONGREHAI_ -C:7777

Anprtutt (court of tilt 'Anita Al c%ooltiogfoo, p. QT. zopig

CHAMBERS OF

JUSTICE JOHN PAUL STEVENS

November 7, 1977

Re: 76-911 - Adamo Wrecking v. United States

Dear Bill:

In a few days I will circulate a dissent in thiscase.

Respectfully,


Copies to the Conference

REPRODU :4 ' FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIDRARY-OF'CONH.

To: The Chief JusticeMr. Justice BrennanMr. Justice Stewart A(Mr. Juatioe White

Mr. Justice Marshall

Mr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist

1st DRAFT

From: Mr. Justice Stevens1 tCirculated. DEG 917

Recirculated:


No. 76-911



United States.

[December —, 1977]

MR. JUSTICE STEVENS, dissenting.The reason Congress attached "the most stringent criminal

liability," ante, at 7, to the violation of an emission standardfor a "hazardous air pollutant" is that substances within thatnarrow category pose an especially grave threat to humanhealth. That is also a reason why the Court should avoida construction of the statute that would deny the Administra-tor the authority to regulate these poisonous substanceseffectively.

The reason the Administrator did not frame the emissionsstandard for asbestos in numerical terms is that asbestosemissions cannot be measured numerically. For that reason,if Congress simultaneously commanded him (a) to regulateasbestos emissions by establishing and enforcing emissionsstandards and (b) never to use any kind of standard exceptone framed in numerical terms, it commanded an impossibletask.

Nothing in the language of the 1970 statute, or in its his-tory, compels so crippling an interpretation of the Adminis-trator's authority. On the contrary, I am persuaded (1) thatthe Administrator's regulation of asbestos emissions wasentirely legitimate; (2) that if this conclusion were doubtful,we would nevertheless be required to respect his reasonableinterpretation of the governing statute; (3) that the 1977Amendments, fairly read, merely clarified his pre-existing:

FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIOW; LTERARY-OF 'CON

To: The Chief Justice• Mr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justioe Marshal/Mr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist2nd DRAFT

!From: Mr. Justice StevensSUPREME COURT OF THE UNITED AlgaSed:

No. 76-911 ReclroUlated:Adamo Wrecking Co.,

Petitioner, On Writ of Certiorari to the Unitedv. States Court of Appeals for the Sixth

United States. Circuit.

{December —, 1977]


liability," ante, at 7, to the violation of an emission standardfor a "hazardous air pollutant" is that substances within thatnarrow category pose an especially grave threat to humanhealth. That is also a. reason why the Court should avoida construction of the statute that would deny the Administra-tor the authority to regulate these poisonous substanceseffectively.


Nothing in the language of the 1970 statute, or in its his-tory, compels so crippling an interpretation of the Adminis-trator's authority. On the contrary, I am persuaded (1) thatthe Administrator's regulation of asbestos emissions wasentirely legitimate; (2) that if this conclusion were doubtful,we would nevertheless be required to respect his reasonableinterpretation of the governing statute; (3) that the 1977Amendments, fairly read, merely clarified his pre-existing

FROM THE COLLECTIONS OF THE MANUSCRIPT . DIVISION;"1 13A111r."OY''CON

TO:-The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist

From. Mr. Justice Stevens

Circulated:

3rd DRAFT 192OLGRecirculated:

1//


No. 76-911



United States.

[December —, 1977]


liability," code, at 7, to the violation of an emission standardfor a "hazardous air pollutant" is that substances within thatnarrow category pose an especially grave threat to humanhealth. That is also a reason why the Court should avoida construction of the statute that would deny the Administrator the authority to regulate these poisonous substanceseffectively.


Nothing in the language of the 1970 statute, or in its his-tory, compels so crippling an interpretation of the Adminis-trator's authority. On the contrary, I am persuaded (1) thatthe Administrator's regulation of asbestos emissions wasentirely legitimate; (2) that if this conclusion were doubtful,we would nevertheless be required to respect his reasonableinterpretation of the governing statute; (3) that the 1977Amendments, fairly read, merely clarified his pre-existing

REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIOn'IIRRARF"OluTOM

To: The Chief JusticeMr. Justice BrennanMr. Justice Stewart

7Mr. Justice White.4r. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist

From: Mr. Justice Stevens

Circulated:

Recirculated: DEC 2 0 19134th DRAFT

SUPREME COURT, OF THE UNITED STATES

No. 76-911

Adam() Wrecking Co.,Petitioner,

v.United States.

On Writ of Certiorari to the UnitedStates Court of Appeals for the Sixth,Circuit.

[January —, 1978]


liability," , ante, at. 7, to the-violation of an emission standardfor a "hazardous air pollutant" is that substances within thatnarrow category pose an especially grave threat to humanhealth. That is also a reason why the Court should avoida construction of the statute that would deny the Administra-tor the authority to regulate these poisonous substanceseffectively.

The reason the Administrator did not;Fframe the emissionsstandard for asbestos in numerical terms is that asbestosemissions cannot be . measured numerically. For that reason,if Congress simultaneously commanded him (a) to regulateasbestos emissions by establishing and enforcing emissionsstandards and (b) never to use any kind of standard exceptone framed in numerical terms, it commanded an impossibletask.

Nothing in the language of the 1970 statute, or in its his-tory, compels so , crippling , an interpretation of the Adminis-trator's authority. On the contrary, I am persuaded (1) thatthe Administrator's regulation of asbestos emissions was-entirely legitimate; (2) that if this conclusion were doubtful,.we would nevertheless be required to respect his reasonableinterpretation of the governing statute; (3) that the 1977Atneildments, fairly Head', merely clarified his pre-existing:

Documents

The Burger Court Opinion Writing Databasesupremecourtopinions.wustl.edu/files/opinion_pdfs/1977/...eguvrtute (Ctatri of tilt 'guitar ,tztito aBilingto-n, 79. Q. 2.L1A4g CHAMBERS OF